Glenn Moore-Carter v Alba (N.S.W.) Pty. Limited
[2023] FWC 2957
•10 NOVEMBER 2023
| [2023] FWC 2957 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Glenn Moore-Carter
v
ALBA (N.S.W.) PTY. LIMITED
(U2023/7674)
| COMMISSIONER DURHAM | BRISBANE, 10 NOVEMBER 2023 |
Application for an unfair dismissal remedy – amendment to application – correct name of Respondent – sale of business.
On 16 August 2023, Mr Glenn Moore-Carter made an application to the Fair Work Commission for an unfair dismissal remedy. In his Form F2 Application, Mr Moore-Carter listed the Respondent as Alba (N.S.W.) Pty. Limited (Alba). Alba operated a whale-watching cruise business, Spirit of Gold Coast, with whom the Applicant had been engaged as a casual employee since 1 May 2019.
On 24 August 2023, the matter was listed for a staff conciliation. On 1 September 2023, Ms Angela Jankovic, Director of Alba, advised by email that she would not be attending the staff conciliation. In the same correspondence, Ms Jankovic stated that the Applicant had not been dismissed, and that on 1 August 2023 she had sold the Spirit of Gold Coast business. On that basis, she requested that she have no further involvement in the matter.
The matter was allocated to my Chambers on 6 September 2023 and correspondence was issued to the parties the following day. Ms Jankovic was asked to provide, by 8 September 2023, proof of transfer of the business, as well as contact details for the new owner. Ms Jankovic replied, advising that Mr Moore-Carter knew the new owner’s contact details, and again requesting that the Commission refrain from contacting her.
While not naming them as the Respondents, Mr Moore-Carter indicated in his application that the new owners of the business were Global Goji Group Pty Ltd and/or the Trustee for Putland Family Trust. Accordingly, on 12 September 2023, I sought the Applicant’s permission to amend his application to reflect Global Goji Group Pty Ltd (Goji) and/or the Trustee for Putland Family Trust as the Respondents. On 20 September 2023, the Applicant advised that Spirit of Gold Coast had been purchased by Mr Joel Putland, and stated that the Respondent was Mr Putland’s company, Spirit Gold Coast Pty Ltd.
On 6 October 2023 Mr Moore-Carter applied to amend application U2023/7674 to correctly identify the Respondent as “Global Goji Group Pty Ltd trading as Spirit Gold Coast Pty Ltd” (application to amend). On 11 October 2023, my Chambers sent an email to the parties, requesting that they advise my Chambers of any objection to the application to amend. Mr Putland replied to this email, opposing the application.
On 17 October 2023, I issued Directions requiring the parties to file any material in support of whether or not the application should be amended. Mr Moore-Carter filed his material on 23 October 2023.
Mr Putland did not file any material, either on his own behalf or on behalf of Goji or Spirit Gold Coast Pty Ltd. Mr Putland affirmed that he opposed the application on the basis that Mr Moore-Carter is not an employee and has never been employed by him or his companies. Furthermore, Mr Putland requested that the Commission stop contacting him, as to do so would be a waste of time.
Ms Jankovic did not file any material in accordance with the Directions.
The application to amend was listed for Hearing on 7 November 2023. Mr Moore-Carter was the only attendee at the Hearing.
Relevant legislation
Section 586 of the Fair Work Act 2009 reads as follows:
Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.
Consideration
I have considered the material provided by all parties in relation to whether or not to exercise my discretion under section 586 of the Fair Work Act 2009 to amend the application to identify the correct Respondent.
While Mr Putland has not provided any formal submissions with respect to my Directions, his email correspondence indicates that whilst he agrees that he purchased the Spirit of Gold Coast business in August 2023, he disagrees that he employed Mr Moore-Carter after he took ownership.
Alba, the current Respondent in the matter, has indicated that the business that employed Mr Moore-Carter was sold on 1 August 2023 to Mr Putland.
Mr Moore-Carter has indicated in his Form F2 and maintained in his application to amend that he was dismissed on 4 August 2023. This is supported by witness statements provided by other crew who were on board the vessel on this date.
During the Hearing, Mr Moore-Carter provided evidence confirming that he, and the rest of the crew, had been advised of the impending sale of the business in advance of 1 August 2023, and that Mr Putland had been introduced as the new owner.
Mr Moore-Carter's evidence suggests that staff were given the impression that the business was being sold as a “going concern”, which he understood to mean that the staff would transfer over to the new owner, and it would be “business as usual”.
Mr Moore-Carter confirmed that he and the rest of the crew continued to work as usual up to and after the sale of the business to Mr Putland and that all of his belongings and equipment remained on the vessel as usual. As such, I consider it reasonable that the staff, including Mr Moore-Carter would have formed the view that their employment would transfer to the new owner.
Mr Moore-Carter provided further evidence to confirm that he worked his usual shifts on the Spirit Gold Coast between 1 and 4 August 2023. In support of this, Mr Moore-Carter tendered email and text messages that had been exchanged between him and Mr Putland on 31 July and 1 August 2023, which he says clearly indicate an employer/employee relationship existed.
When explaining the events of the 4 August 2023 during the Hearing, Mr Moore-Carter stated that upon his arrival that day, Mr Putland pulled him aside and told him that he was “letting him go”. One would think that if Mr Putland’s assertion that he had never employed Mr Moore-Carter were correct, he may have questioned why Mr Moore-Carter was on the vessel at all, and further, if he had never been employed by him, there would have been no reason to “let him go”.
Further, Mr Moore-Carter, provided a copy of his payslip for the week of 31 July 2023 to 6 August 2023, which clearly indicates that he was paid during this time, Importantly, the payslip contains a note stating:
“New Owner for Spirit from 1/8/23
This pay run is for Tuesday 1/8/23 – Sunday 6/8/23”.
Taking all the material before me into consideration, I have formed the view that Mr Moore-Carter was employed by, worked for, and was paid by Mr Putland, prior to his alleged dismissal on 4 August 2023.
Ms Jankovic argued that Mr Moore-Carter was a casual employee. Mr Putland argued that he had never employed Mr Moore-Carter. Both argued that they were under no obligation to Mr Moore-Carter. While the question of Mr Moore-Carter’s employment status will need to be addressed in further proceedings, it is not relevant to determining the appropriate respondent.
Upon conducting an ASIC Search, it was determined that Mr Putland is the current director of Spirit Gold Coast Pty Ltd and current director of Goji. Spirit Gold Coast Pty Ltd was registered as a company on 31 July 2023. It appears this company purchased the Spirit of Gold Coast business on 1 August 2023. As Mr Moore-Carter has alleged he was dismissed on 4 August 2023, I am satisfied that that Spirit Gold Coast Pty Ltd is the correct Respondent.
I do not consider that Spirit Gold Coast Pty Ltd will suffer any prejudice if the application to amend Mr Moore-Carter’s unfair dismissal application is allowed, such that the Respondent is named as “Spirit Gold Coast Pty Ltd”. I have also had regard to the principles as set out in the Full Bench decisions of David Djula v Centurion Transport Co. Pty Ltd,[1] and Tobiahs Pty Ltd v Jessica Vidacic,[2] in determining whether it is appropriate to amend the name of a party to an application made before the Commission.
Conclusion
I am satisfied that the correct Respondent to the application made by Mr Moore-Carter is Spirit Gold Coast Pty Ltd, and that it is appropriate for the application to be amended to reflect this.
As such, I exercise my discretion under s.586 of the Act to amend application U2023/7674 to identify the Respondent as “Spirit Gold Coast Pty Ltd”, which has effect from the date of this decision.
An Order giving effect to my decision will be issued separately.
COMMISSIONER
Appearances:
G. Moore-Carter on his own behalf
Hearing details:
2023
Video using Microsoft Teams
7 November
[1] [2015] FWCFB 2371.
[2] [2011] FWAFB 1679.
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